tv Zarda v. Altitude Express Oral Argument CSPAN October 5, 2017 6:13pm-8:03pm EDT
color, national origin and religion. in 2010 donald zarda, a sky diver instructor with altitude express filed a lawsuit alleging he was fired because of his sexual orientation after he revealed to a client thoo he is guy r. mr. zarda passed away in 2014. his estate is continuing on with the suit. >> good afternoon. each side has been assigned 30 minutes divided ten minutes per person and that time may be exceeded depending on how things go during the argument. we'll hear from mr. an toe lee notice. >> good afternoon, urn. and all of your honors. i forgot to introduce steve berg steen, my cocounsel, who worked with me on this case.
we're proud to represent melissa zarda and bill moore, the executors of the zarda estate and we ask the court to construe and unite title vii with life as we live it and under the plain language and its interpretations. we ask that you find that sexual orientation discrimination is sex discrimination under title vii. don zarda was a male. he was known as guy, though he was not traditionally feminine, but he was a great sky diver. when a customer complained that he identified himself as gay, he was fired and for that revelation, it was a violation of the statute because his sex, a male who was attracted to other men was a motivating factor in the adverse action.
and in this case he identified as gay only because he was accused of being straight. and he was proud of being gay, and in the male workplace of the skydiving community, jokes were often made that loose end the tension of the experience and jokes were often sexual. >> is his claim that -- is he alleging that he was fired because he was gay or because he disclosed that he was gay? what's the precise nature of his -- >> well, it's all part of the puzzle. he was known to be gay, but because he came out as gay to a customer, he was discriminated against because of that. and that identification was a sex discrimination because it
dovetailed with his being male and being attracted to other men. the simplest interpretation of the statute, i believe, is in judge floun's concurrence in the highly case, although i didn't state it in my brief, or i didn't recite it in my brief. judge flounce concurrence is really quite to the text and holds that if title vii -- title vii requires that a plaintiff need only identify that sex was the motivating factor and that sexual orientation cannot be
extri indicated from sex. therefore, the two are one in the same. there are also two other evidentiary theories. i don't know what you want to call them, routes to interpreting sexual orientation discrimination as sex discrimination. and the first and most obvious one would be association aldiscrimination whereby an employer, if he makes -- or takes an adverse action against an employee because of the protected class with whom the employee associates has been found to have violated title vii, judge egg ling ton held this precisely in gu till yeah, the opposition alleges that --
>> are you alleging associational discrimination here? and what are the facts that support that claim? >> well, i think that in and of itself a man who identifies as gay associates with other men, and is seen to associate with other men. in addition, in this case we don't want to exclude single people, but in addition in this case, mr. zarda also told the female sky diver, whom he sensed was uncomfortable because of the sexual joke that i'm gay and i have the ex-husband to prove it. and his ex-husband was not his husband. it was just a phrase he used who was the executor of his estate and is in court today. and so that was the association. that could be a specific association, but it is also a general association. the third theory or evidentiary
route to reaching a violation of title vii would be sex stereo types -- >> isn't that the only one, at least that i have here, is the only one you actually pleaded was sex stereo types? >> i believe you're right. >> what is before us, then? the summary judgment was granted on that and you didn't appeal it and the panel opinion said it's not before them. how is stereo typing still before us? >> oh, i don't understand the panel opinion as saying stereo typing is -- well, what -- >> i can read it to you. zarda has explained the district court found that zarda failed to establish the requisite proximity between his termination and his failure to conform to gender stereo times. and you didn't challenge that on appeal. >> i understand your point now, and what that takes into account is the traditional he fem any i
argument that a male may make. i do not conform to sexual stereotypes in that i am he fem knit in certain ways. but we did argue that after baldwin came down and we moved to reopen title vii that sexual orientation is the ultimate or gay orientation in this case is the ultimate sex stereotype. so while there were a few little snippets of pink toenails and whatnot, the argument is the ultimate sex stereotype, as opposed to the bean counting approach of, well, he wore womenel clothes and he spoke in his voice, sounded gay and whatnot. it is broader sex stereotype. >> so are you saying that gay is
sexster typing? >> gay -- >> the thing that people can imagine one way or the other is sexster typing. >> it is the ultimate sex stereotype in that men are expected to prefer women affectionateel and sexually and women are supposed to enjoy that protection -- that affection. >> to that extent, is it a stereotype that's being applied to both sexes? i ask that because the concern we have is whether we have a discrimination that fits within sex discrimination or something different that while discriminatory may not differentiate between men and women. so is the sexster typing you're talking about applicable equally to men and women homosexuals? >> that is the question that
comes up again and again. and the answer is that it does apply equally, but both men and women are being discriminated against. >> but is that what sex discrimination under title vii is meant to prohibit? >> well, that's a very broad question, and i could go -- i mean, there are -- i could write a whole article for you about that. the different ways that courts have interpreted sex discrimination under title vii. and a comparative example would be what if an employer disfavored or discriminated against christians who dated christians, are they being treated the same or are they being discriminated against because they are christians? the same rationale, although it
is not exactly precisely on point, was made in loving against virginia where in -- courts had held for many years that the races were treated equally, but in fact, each race is being treated -- being discriminated against. and in our belief, the discrimination is against don zarda because he was a male because it was a motivating factor in his termination. had he been a woman, this wouldn't have happened. >> let me ask you about that. if the client had been assigned to a woman sky diver who identified herself as gay, it seems to me from the facts we
have before us that the client probably would have complained just as much and the female instructor would have been fired too. am i missing something? >> that's hard to say. i cannot speculate as to whether this -- it was actually the client's boyfriend who complained. but the reason it came up in this case was that don was accused of having some sexual dal yans with this woman and he took himself out of the equation by announcing he was gay. if he had been a woman, i don't think that in a hert oh normative society someone would have made a joke like that and the events would not have played out as they had. >> you'll have three minutes. >> thank you very much.
>> mr. who oh wits. the question before the court is a pure question of law, whether title vii prohibits discrimination on the basis of sexual orientation. >> yes, sir. >> how do you respond to the criticism of the at mus of the compare tore hype thet calls, in particular the criticism that compare tors change both the sex and sexual orientation of the hypothetical employee? >> well, urn, the goal in terms of the analysis is to determine the effect of the individual sex on the way they're treated, and so to do that the man heart decision tells us that what we do is to look at the individual. if you change the sex of the individual and the outcome would be different, that's discrimination because of sex. >> so one of the criticisms
leveled by the department and by mr. mortar ra of this compare tore test is they point out that a woman who is fired for chronically using the men's rest room or locker room would not have been fired had she been a man, but it's pretty clear that an employer could fire her without violating title vii. what's your response to that? >> well, urn, the bathroom issue, while it's often relevant to cases of transgender discrimination, it's never been relevant to -- or at least not as far as i know, not relevant to a case of sexual orientation discrimination. and in fact, to bring it up, concedes that sex is an element -- i'm sorry, that sexual orientation discrimination involves an element of sex -- >> hold. >> sorry, urn? >> isn't that criticism designed to show a weakness in the compare tore test? so the compare tore test is not a perfect test. would you agree with that? >> i wouldn't say -- i mean, in the focus of man heart, i think
it's a very useful test where it's not that you -- you nieceel need to find an identical compare tore who works at the location. what you're doing is comparing the individual with the hypothetical situation. same individual but a different sex, is the outcome different. and that's exactly what loving tells us to do in the race context. and here it applies equally in the sex context of the if i may get to your point about the bathrooms. by conceding that sex is relevant to the question of sexual orientation, then bringing up the bathrooms, that's essentially saying let's look at the terms and conditions. but which bathroom one uses is very different from one's choice of a partner. and the choice of a partner has been held by the supreme court numerous times to be fundamental. >> when you say you change the sex that that's the man ford test, it seems to me there's still a little ambiguity as to
how we do that. to use this case as the example, is it that we change it and say a woman instructor says i'm gay or i think what you're urging us to do is say a woman instructor says i'm attracted to men, and those -- the comparison could be either one and we might get different answers. what guidance would you give us? >> well, i believe what your question gets at is sort of the focus of the analysis in terms of the individual. and here case after case has said that you focus on the individual's experience. and so -- >> we have a male instructor who told a female client i'm gay. so why is the comparison not a female instructor saying to the woman client i'm gay? >> well, in the indication of a
female rin strukt or saying the same thing under price waterhouse, that would be -- if her sexuality was determined to be the reason that she was fired, that would -- both mr. zarda's case and this hypothetical case, in both cases the person would be fired for not comporting with the employers or in this case the customer's view of proper gender roles. >> i understand that argument, but that then gets us to whether that's a matter of sexual orientation that's different from sex discrimination. it somehow seems curious to say that in that circumstance both a man and a woman would be fired and it's sex discrimination. so how do we reach that conclusion? >> in that situation both a man and a woman would be fired because they're not comporting with this view of proper gender roles. >> which i suggested to cocounsel is now being applied equally to both men and women.
there is a presumption, a stereotype, a bias, whatever we want to call it that people should be attracted to people of their same sex. and it's applying both to men and women. and i'm having trouble understanding how that's discrimination that differentiates between men and women as opposed to a different kind of subscription that we might well wish to, you know, prohibit but that's not sex discrimination. >> i believe it's still sex skrims because what you're doing is you're holding both individuals in that case, both the man and the woman who are fired for the sexuality, you're holding them to the same standard of gender behavior that price waterhouse says is not appropriate. >> well, to be clear, then, mr. who wits, if in your response it sounds like it really isn't the man heart test. you've now switched the ground to another argument chrks is the argument from sexster typing, because i think what her questions were going to was
can't we -- why shouldn't we if the test is just if a woman said the same thing it would be different. why isn't that the right way of applying that test? >> and i apologize if i misunderstood your honor's point. that's exactly right. i mean, with these three ways of looking at it, these three paths that we've proposed, some may fit more comfortably in a given situation than another, but the underlying -- the ultimate underlying idea with all three is that sexual orientation is within discrimination because of sex and that, in fact, that's -- that they are -- and that's based on how the law has been interpreted. and to try to cut them out -- to cut sexual orientation out of the protections in parts into title vii juris prudence, an exclues that's just not there. you're right.
it is perhaps easier to look at the price waterhouse analysis of sexualster typing rather than looking at the individual, although i believe it still works in that context because you're comparing the individual with a hypothetical same individual, same conduct, but different sex. >> you're using sex and gender interchangeably. is that problematic? >> i much like with the hide lie decision and much as the supreme court has done, for the purposes of this issue, i am using them interchangeably as the courts have done. i don't believe that's a problem. >> well, the statute doesn't refer to gender. >> that's true. the statute doesn't, but price waterhouse does use gender and sex interchangeably. and so that's how the courts have approached that issue. >> are you saying that that test -- i mean, the language of the statute is discrimination because of an individual's sex. are you saying that the but for test is the best interpretation
of that language or are you saying something specific about sexual orientation cases? >> no, urn. i'm saying the but for test is the most appropriate. >> i mean, there are additional cases beyond the example of rest rooms that don't seem to follow with -- like in the ninth circuit or the recent case of bour in the fourth circuit. in just person the sections are treated differently but there's an interpretation that that's not an adequate basis for finding a violation of title vii because they're not similarly situated. >> that's correct, urn. in terms of the terms and conditions applied to each sex, this court held in the at that bore ra v. america an tile exchange case that in that case the idea of a man heart test didn't apply to a hair length restriction. and the court held that in that case where it was something relatively trivial at issue,
then it didn't need to be applied. but with respect to -- >> the but for test can be the meaning of title vii, the interpretation of the language discrimination because of an individual sex or am i misunderstanding? >> well, urn, the but for test in that case is one useful path to look at. it might not cover every fact pattern. and in the at that bora case, for example, there was that hair length restriction and the court held because it was relatively trivial, the difference in treatment didn't go to something fundamental about terms and conditions. but one could imagine a case in which it really would in which the standards that one sex is held to are very different from a standard another sex is held to. >> your adversaries say that the civil rights act amendments of 1991 should be understood as rat fieg the proposition that sexual orientation discrimination is
not prohibited under title vii. >> yes, urn. and that's incorrect for several reasons. first is the pension benefit guarantee copper case holds, legislative inaction is a very poor means of determining congressional intent, particularly in this case, it's a poor grounds for a number of reasons, including that you don't know what the grounds for amending the statute or not amending the statute might be. it might be that they think it's already included. it might be that they think it doesn't go far enough. there might be something else about the bill. >> isn't there a different tweens legislative inaction and lenls laifb re-enactment of the statute with the whole set of amendments in the face of a broad consensus of judicial opinion as to what the statute means? >> well, your honor, i would disagree with the broad
consensus. at the time in 1991 when congress was taking up the issue of amend being the civil rights act, there were only a few circuit court cases. none had looked into the decision -- none had looked into the issue with any sort of rig or. and the congress generally amends statutes in response to supreme court holdings, not those of district courts. and in fact, in this case one could just as easily argue that because price waterhouse was one of the driving cases that led to the amendment and the price waterhouse analysis focused on sexualster typing, but congress didn't cut sexual orientation out of the protections of the statute when they could have. and they've done that in 1990 with the ada, in 1993 -- >> when you say that congress generally amends in response to supreme court decisions, are you aware of any congressional action by way of amendment or re-enactment that's in response
to a circuit court decision? >> i'm not, urn. i'm not. >> do you think that the legislative intent in 1964 is relevant? >> no, urn, i don't. >> why is that? >> well, in the on call justice, adjust scalia said that it's the words of the statute rather than the concerns of the legislators that drives the interpretation of the statute. >> there have been legislative acts in response to circuit court decisions, but they've been explicit in indicating their disagreement with those decisions and changing the law in response to those decisions. i take it that in this case your argument is that there is no mention of any of the relevant circuit court decisions, and to the extent that court of appeals decisions are mentioned or supreme court decisions are mentioned, they're about different issues and that the
purpose of the 91 amendments was to expand the scope of protections rather than to contract them. that's the language, isn't it? >> that's exactly right, your honor, yes. >> could you take a minute to address the changing decision of the eoc over the years. >> certainly, your honor. we took a fresh look at the decision. we took a new look at that in light in part of the supreme court's guidance over the past 15 years, now 17 years. and in part based on our conversation with stakeholders, both employers and employees. and when we swept away the preconception and just looked at the legal argument, we ultimately concluded that based on the way courts have interpreted title vii, sexual orientation discrimination is and cannot be separated from -- >> you agree that these
arguments were available well before baldwin? >> yes, your honor. i ado agree. they were available, but i think seventh circuit and perhaps this circuit and the eeoc just perhaps did not -- >> they were available to the eeoc, so the eeoc has been aware of these arguments for years. is that correct? >> we've been aware of these arguments the same way the courts have, your honor. that's true. >> thank you. >> as to the deference that we owe your position now as opposed to the deference we owed your position then, what is the import of the change and what would you say about what deference we do owe to your sperpgs of the statute? >> well, your honor, under skid more we're entitled to deference based on the persuasive value of our arguments. but in assessing the persuasive value, it's important to keep in mind the eeoc's position in the
broader administrative framework. >> how is that different from deferring to your argument today? it's a question of the strength of the argument, not the fact that you're the eeoc. >> well, right. it's a reflexes of the strength of the argument, but it's also an argument that has been informed by our experience as the agency that's tasked by congress with the interpretation, the administration and the enforcement of title vii. and in fact, when we went to revisit our approach to the issue, we solicited input from stakeholders, including both employers and employees, and that helped us come to our -- >> did you include doj? >> i'm not -- >> opinions -- >> i'm not aware. >> you know, we love to hear from the federal government, but it's a little awkward for us to
have the federal government on both sides of this case. >> indeed, your honor. >> your point is -- on the deference point, which you're acknowledging, your argument is not entitled to chevron deference deference, which would be the highest form of deference. >> correct. >> but simply entitled to deference to the extent that the argument is persuasive. and that takes into account under doctrines of administrative law changing con sepgsz that administrative agencies may have overtime as to particular legal questions. >> that's exactly right, your honor. >> does the eeoc have a position about judge floun's concurrence in the highly case? is it something that the eeoc could agree with or agrees with? >> well, certainly judge flounce' approach where he looks at whether somebody is being discriminated against because of sex and he looks at it in terms
of they are a man who has a relationship with another man, and so if that is what drives the employer's an i mus, then that's discrimination necessarily because of sex. and that is fully in line with our position. >> may i ask you a question about your view on sexster typing. in price waterhouse justice brennan's plur although opinion suggests that not all sexster typing will support a title seven claim. and i'm wondering if you construe that to mean that the sexster typing that is evident in any particular case has to bespeak or support a finding of intent to discriminate between men and women? >> i think it has to bespeak a finding that it's an intent to keep -- to sort of hold employees to a standard of behavior in conformance with the employer's vusz of what behavior is proper for men and proper for
women. >> well, that would suggest that all sexster typing is prohibited. and the particular example that justice brennan gives is one where he thinks women are put into a catch-22. be too aggressive and you're not considered feminine enough. don't be aggressive and you won't succeed the way your male counterparts do. so you're going to be fired if you're too aggressive and fired if you're not aggressive. that's the catch-22 that he says title vii takes women out of. and then it's the very next paragraph that suggests that not all sexster typing will present a title vii violation. so i'm trying to figure out where you think sex stereo typing plays in all of this. many of the arguments that have been presented have suggested to us that sex stereo typing is
prohibited sex discrimination. and i'm having a little trouble with that in light of what is said in that part of price waterhouse. >> well, urn, perhaps it goes back to the vora decision where if the sex stereotype issue is hair length, for example. this court said that's a relatively trivial distinction and so based on that, the court was not prepared to find that there was subscription because of sex. but in terms of where sexual orientation is involve, that's far from trivial. that's a fundamental right. and so even if there is an exception at the level of hair length, that would not apply. >> well, taking -- >> there's a different when something is trivial and when something is important, of course, as a matter of public policy. but where do you get a rule out of the statute that says trivial sex discriminations aren't
discrimination based on sex or trivial sexster typing issues are not discrimination based on sex but big timester typing is? >> well, urn, that's the way this court has interpreted the statute and interpreted man heart. >> so there's a difference between or a distinction between trivial and fundamental discrimination? >> yes. >> title vii. >> and a sexster typing that applies to both men and women as in people should be attracted to persons of the same sex, how does that now play in? >> well, the sex stereo typing, that says that if you are a man attracted to men or a woman attracted to women, either way, you don't meet the stereotype that the employer -- that the employer has for how your gender should behave, and so in that case you're being put to a question, do i keep my job or do i have my choice of partner?
>> but is it putting a disadvantage on one sex, either men or women, or is it putting a disadvantage or homosexuals and that that's now the distinction. it's not men and women, it's homosexuals versus hert oh sex wallace? >> urn, it's putting a distinction on an individual basis because of sex, and when an individual is discriminated against because of sex, regardless of other people that might fit in that group, looking at the individual, that is discrimination. >> is it sex discrimination, in your view, if an employer fires an employee for cohabiting out of wedlock? >> yes, your honor. i think that -- well -- >> that would make this a very broad doctrine, wouldn't it?
>> cohabiting out of wedlock, that might -- but sex was not a factor of the cohabitation. that would apply to men and women -- >> it would apply to men and women, it would apply to homosexual or heterosexual. i'm asking a really broad question. >> i see. >> whether there are any limits to the doctrine that you are proposing. >> in that case i don't know if it fits within one of the paths of analysis that we've suggested in our briefing. >> it may not, but that's sort of why i'm asking you the question. >> right. right. so in that case i think if you -- >> it would be based on sex, would it not? >> it would not be based on the individual sex, no, your honor. i don't believe so. if it's cohabiting. i mean, that might raise other concerns, but it wouldn't be -- in that case i don't believe it would be a distinction. >> well, it would if it were a
man and a man or a woman and a woman. >> i mean, if that were the grounds for the distinction. but if a man would be terminated for cohabiting with a woman but a woman would also -- or a man and a woman would be -- then in that case the man heart test, it doesn't seem like that would result in -- yeah. i don't think either under man heart or the price waterhouse analysis. >> thank you. >> thank you, your honors. >> mr. never yins. >> thank you. may it please the court. my name is greg never ens. title seven's base on sex discrimination because of sex necessarily includes a bar on discrimination because of sexual orientation because discrimination -- to discriminate based on sexual orientation is differential treatment based on whether an
employee is male or female. if a hypothetical female employee named denise sar dar would be retained but donald zarda was not, then we have sex krimgs. and in response to the judges' immediately previous question, i think actually one of the ways in which the courts have gotten a little bit off the rails on this is based on the did he seno opinion the court says sex does not mean the sex you have. sex the means the sex that you are. so in other words, if an employer were to condemn all extramarital affairs or all instances of cohabitation equally, no matter who was involved, that would be okay under title vii because title vii does not mean the sex you have. but to affix a scarlet a and a pink slip on the woman who has an affair but not the man who has an affair, that's where you run into the problem under title vii. >> this does have religious freedom ramifications. >> it probably does, uyour hono,
and i believe that altitude express has not invoked any such things. and that would be a weighty consideration. but i think one of the pearls of wisdom that the christian son concurrence left us christian concurrence left us with is when you don't have all the best arguments and don't have all the full arguments in front of you, it may not be the best moment to opine on broad statements of what is covered and what is not covered. so i believe that, your honor, i feel confident that there will come another day in which this clourt be called upon to address that question. but that day is not i believe before the court today. >> could you address more specific what you have heard about the comparator approach and how we should think about the comparator approach? >> well, of course the court has the benefit of our take on it which is your honor take was exactly correct in the christian concurrence. >> well, i asked the question.
>> i'll go back to the analogy. we tried to come up with a nonalcoholic analogy. i do believe if you have vodka and you change grapefruit to -- orange juice to grapefruit juice, you've only changed one thing. and they're trying to play a pay lore trick on this court by saying you're changing two things. now you change a screwdriver to a greyhound. >> how do you change it in this case? how do you change it in this case, if you're a woman in this scenario, how you do it. >> absolutely, your honor. and i appreciated your questions earlier. i think we have to look at what the significance of what it means to say i am gay, because let's be honest. you're saying i'm a man attracted to men, or in the case of a woman, i'm a woman attracted to women. we cannot divorce that reality from what's going on. so therefore, if that would not be problematic for a woman to say i'm attracted to men -- >> that's not what he said. >> i understand that, your honor. but words have -- in order
for -- just to say i'm gay, obviously 100 years ago, that meant you were a very happy person. >> my problem with this is that the likelihood that a woman would have said it in this case may be suspect because the reason that the instructor said it here was to put aside her concerns that she would be sexually molested in the course of this close contact. but now we're applying a test, and you're saying don't change anything except the sex of the plaintiff. okay. but you don't want to do that. you want to interpret what the plaintiff said. and i'm not sure why that's not playing with it as much as what some of the things that your adversaries have urged to do ask. why do anything more than okay, if a woman had told this client she was gay, she would have what? i think the male companion might have been even more upset and
the criticism would have been even greater. what am i missing? >> well, your honor, my very capable friend mr. antollino and mr. do have to go back with any favorable ruling and prove that sex was a motivating factor. so in other words, if altitude express demonstrated that any statement by any instruct they're involved their sexual interests was absolutely grounds for termination, that's a different case. but here what the allegation is that what he said was i'm a man attracted to men. and so that was the problem. and they have to show that that would not have been the case if a woman said something like that. and they're very capable of doing that on appeal. but i believe the reason why this court is convene en banc to answer that question, if he can make that showing has he stated a title vii claim. >> let's take to it the next step in generality. let's say you have a situation in which an employer would
equally fire male and female homosexuals. that's sex discrimination under title vii? >> and if i could, if an employer said i've seen the statistics about the failure of interfaith marriages, and i see -- >> the hypothetical i gave you. an employer would fire a male homosexual or a female homosexual? >> is discrimination against a same-sex relationship is the same as discrimination in an interfaith relationship is the same discrimination against someone in an interracial relationship. >> i'm having trouble with that is that the factor religion, race is one itself that is deemed invidious. here that's not quite what's going on. >> and i would respectfully disagree. >> tell me why. >> because if i -- if i say -- all i'm saying is no interfaith relationships. and as my eoc colleague said
earlier, title vii applies to the individual. so in order to actually enforce that, you have to know what my religion and what my spouse's religion. and if the difference between those is what prompts me to be fired, then that is discrimination based on my religion, in the same they that you can say, try to mask it in neutral terms and say it's a discrimination against everyone in a same-sex relationship. but in order to apply that and have a problem when pat marries robert, you have know that pat is patricia and not patrick in accounts receivable. for the individual to be discriminated against, you have to know what their religion is and what their sex is in my hypothetical. so therefore the same rules should apply. and in that sense, i do want to touch on an argument that was offered which by the other side i want to say if there is one radical reinterpretation of title vii that is being offered before this court today, it's not by me and the two gentlemen who preceded me to this
microphone. the idea that first off, discrimination against people in interracial relationships is, as they often say, as they say, often and almost always because of races and ideology and someone deems one race to be inferior/superior. but please do not believe that is a necessary condition to find discrimination against somebody in an interracial relationship. or this is the same way in my hypothetical. it's not necessary to find discrimination against somebody who is in an interfaith marriage. one is not exonerated, and we knew this from manhart by equal application or benign motives or even scientific fact underscoring the nature of the differential treatment. the -- what has to -- none of that matters. title vii actually releases the court from that kind of inquiry. it condemns all discrimination on any of the enumerated traits the same way, and -- >> i think we just heard an
argument it doesn't condemn all discrimination. it condemns nontrivial discrimination. >> and i join most of what my eoc colleague said there, although i -- the court -- this court has been a little bit cryptic in why in long go in the '70s and then again in the dvorak case in the '90s what rationale it was using to find that the hair length was acceptable. and so -- what has happened in many of the other circuits is they, and especially in hair length cases, they go, well, phillips versus martin marietta says clearly you can't have one policy for men and one policy for women. so saying you can't have shoulder-length hair if you're a man but you can if you're a woman would seem problematic. the way they got around that is to come up with various tests. i will say the supreme court has never signed on to any of these differential treatment rationales.
but i don't -- this court doesn't have to do any more work than it needs to in overturning sometime simonton and dawson by overdurning longo and door rack because it can rest on the rationale that my colleague mentioned, which is all that is being asked in that case is what the court deemed something fairly trivial. whereas asking a man to give up his relationship with a man or a marriage to a man is now something that we didn't know 20 years ago, or the courts hadn't recognized was an actual constitutional right. now we do. >> don't those cases, again, draw into question whether the but for test can be the -- or this case is wrongly decide. but they're not covered by the manhart test. >> and this court would be -- this court may very well need to -- should probably revisit devor and longo. it's pretty glaring that devore
ra doesn't list price waterhouse. do we have to overrule those? i agree with your honor 100% there is something -- there is a differential between what the supreme court has said and what the circuit courts have said as far as tolerating gender-based differentials. but if you don't want to do any more work than you have to in simonton and dawson, just rest it on the differential there did not involve a constitutional right, and the differential here with mr. zarda absolutely does. >> there is no prohibition for people exercising their constitutional rights. a private employer, as we've read a lot in the newspapers the last couple of days can fire someone for expressing his political opinions. >> absolutely, your honor. we certainly have. and it would be only because of the differential in the sex. the differential in sex. it's not just -- it's not just gay men and lesbians who have a
fundamental right to marry. it's everyone has a fundamental right to marry. and so it would only be problematic -- >> the employer could, as with judge jacobs' question, prohibit nonmarital sexual relationships among employees or marriages and said we want all single employees or something like that. >> whatever problems would be with that, i don't think they would fall under title vii, your honor. >> just to be sure i understand where you would take us on this, if we had an employer whose entire workforce was male, and he undoubtedly fired a male because he was homosexual, no question about it, and replaced him with a heterosexual male, do we have an employer engaged in sex discrimination? >> we do, your honor. and i think that tracks the on call fact pattern very nicely. another problem with the department of justice -- >> tell me why. >> yes. >> because usually we think of these as advantaging men over
women or vice sers or disadvantaging one sex over another. but not disadvantaging within sex unless it's to benefit the other sex. so i'm not sure i -- how it would work in that hypothetical i gave you. >> yes. and just understanding that the offshore sundowner services was an all male work environment. and joseph on call, we don't know exactly why he was singled out for the sexual harassment that any of the other men, and it was none of the men on that trawler. well don't know whether it was because he was cuter, because he was more available, because he was weaker, because he was gay himself. we don't know what that was. but it didn't matter. his being male was -- made him attractive to his supervisor and that's all that mattered and therefore sex discrimination occurred. >> it was a harassment case?
>> it absolutely was, your honor. but it's differential treatment. and it also -- manhart is very careful. it doesn't say treatment of one sex that would be better if you were the other sex. it says "different." and that's important. the doj brief says the treatment must be worse. that's not what manhart says. and that's not what the law is. >> thank you. >> thank you. i appreciate the privilege of addressing the court. >> mr. zabell? >> your honors, may it please the court, i feel like we're here on false pretense. the facts to the extent that they've been argued here today, and it's only been a very small part of the argument, don't resemble what's being argued. donald zarda -- >> the question before us is a pure question of law. >> i understand that. but if you decide this pure question of law without taking into account the facts, then you're doing the law a
disservice, and we're exceeding the judicial mandate. >> let me ask you along those lines, you argue that mr. zarda didn't raise his current claim to the eoc. >> i quote, i am not, not being underlined, making this charge on the grounds that i was discriminated on the grounds of my sexual orientation. that special appendix 3, paragraph 2. that's his sworn affidavit to the eeoc. >> how is he going to do that at the time, though? baldwin hadn't been issue and the eeoc had taken a contrary issue a week after baldwin was issued he files a motion of reconsideration for reconsideration before the district court to reconsider the summary judgment on exactly that basis. how could he have done anything else to tee up that issue? >> the same way they did it. she came right out and said i am making this claim because i was discriminated against, because of my sexual orientation.
if they want to assert the claim, if they want to change the law, they have to plead facts that support that. >> how about is he eeoc charge, as an eeoc charge, he says, and i quote, in addition to being discriminated against because of sexual orientation, was also fired -- discriminated against because of gender. >> right. >> right? >> i'm sorry. okay. >> isn't that precisely -- and then he goes on the say he was fired because, i quote, the levity he used honestly referred to a sexual orientation and did not conform to the state male macho stereotype. isn't that the kind of claim that zarda is urging us to say is included within title vii? >> if you look at his eeoc charge as his ticket to file a complaint in federal court, and you look at his federal complaints, one, two, three complaints failed to allege
discrimination based upon sexual orientation under title vii. they allege it under the state human rights law. but not under title vii. they just go with the sexual stereotypes, which were addressed by judge bianco and dismissed as brought up earlier. >> did you raise this before the district court or the panel here? >> i'm sorry? >> did you raise this argument before the district court in the reconsideration motion or before the panel in this court? >> it was raced before the district court in -- >> you said he didn't exhaust this, your honor. i didn't find that in the district court's record. >> that was absolutely argued before the district court. >> you say that he didn't raise a sexual orientation claim in the complaint before the district court, correct? >> the sexual orientation claim that he raised is the sexual stereotype complaints that were raised before the district court, which judge bianco addressed and which the first panel acknowledged. >> your memorandum of law,
right, in support of your motion for summary judgment, and i'm quoting, says one of the plaintiff's theorys is that he was terminated because of his sexual orientation. and you responded by arguing that plaintiff cannot advance a title vii argument for sexual orientation because of this court's decision in simonton. so aren't you conceding that these claims were in fact properly before the court? >> i am not conceding that. there are alternate arguments. so if he does not raise the issue of being discriminated against because of his sexual orientation in his eeoc charge, then he doesn't get the opportunity now seven years after filing the eeoc charge, after all the facts are out in this case to now somehow amend his pleadings and amend his eeoc charge to say oh, no, no, no, because the court might be willing to change its
interpretation of the application of title vii to sexual orientation, i want to now change my eeoc charge to make it fit what the court might consider. that is exactly what he alleged to the eeoc. i was waiting for this court to say to me why shouldn't we rule like hively. and my response is because in hively they actually allege discrimination based upon sexual orientation. so here when we have the only claims that we need to investigate from an eeoc charge and then brought forward to his federal complaint, we looked at the allegations. those allegations were investigated by the eeoc. we were put on fair notice, and they were decided by judge bianco. >> would you just point to where you argue the exhaustion point before here? where did you make the exhaustion argument? >> that i did not -- >> other than arguing in the reconsideration that it was not raised, that was the only place
it was argued. >> so the plaintiffs argue that you waived the waiver by not raising it any time before today. >> and jurisdiction is not waived. and that's part of our argument. if he has no -- if the plaintiff has no right to be before this court because there is no jurisdiction, or he is asking this court to make a decision that's going to send this case back to judge bianco to decide a sexual orientation case that wasn't plead under the eeoc, then he is sending this court on a fool's errand. >> the district court granted summary judgment relying on simonton, right? >> in part. >> well, in part. but that issue is before us now. because the district court made a ruling based on simonton. >> and the district court also made a ruling that all of the allegations, and now i'm taking from the zidecision of the firs panel, all of the allegations regarding sex role stereotype
weren't analyzed by judge bianco and denied, separate and independent. >> the question of whether discrimination based on sexual orientation violates title vii was ruled on by the district court, correct? >> yes. >> all right. so why isn't that issue before us now? >> it's not -- it shouldn't be before you. it obviously is here before you. it shouldn't be because if you look at his eeoc charge, he specifically disavows that this is a claim about his sexual orientation. >> so i'm still confused about the eeoc charge. the way i have it here, from the special appendix 3, he does start by saying i'm not making this charge about i was discriminated against on the grounds of my sexual orientation. rather i'm making this charge because in addition to being discriminated against because of my sexual orientation, i was also discriminated against because of my gender. that's poorly written. the second sentence seemed to
contradict the first. but it clearly raises the issue of sexual orientation. why am i wrong in reading it that way? >> reading it in that vacuum, it does contradict it. but reading it where he is also asserting a claim of sexual orientation under the state human rights law where it's permissible, it makes sense. you can read it. i am not claiming sexual orientation discrimination under title vii because when you look at the next paragraph, paragraph 3, he talks about specifically what he is alleging. and that specifically what he is alleging is merit in complaints 1, 2, and 3 of his federal lawsuit. and that's what was analyzed by judge bianco. >> he goes on the say "my claim is that because i did not conform my appearance and behavior to sex stereotypes, i suffered adverse employment action." that's what the legal question before us. >> no, i'm sorry. >> go ahead. >> it's not my place to say no. but it is judge bianco's
determination that his sexual stereotype claims failed because there was no way a jury could conclude that what he specifically alleged could support a claim for his termination for sexual orientation. >> the yet the judge let it go forward under the new york labor law, correct? just with a different standard of proof of causation, potentially, right? >> yes and. no yes, the judge let it go. but in the judge's decision, he said the facts that were alleged when coupled with testimony that could come out of trial could support a claim. the problem is now we have a closed record. the facts that came out of court came out. we had people come in and testify. and it wasn't what the plaintiff said. the young lady who was jumping with him said a, he made the joke about being strapped to me. and he only disclosed to me his sexual orientation when he felt that i was uncomfortable because he was hitting on me. so if anything, he was
terminated for heterosexual activity. and he tried to cover that by saying to her, don't worry about me. i'm gay. i just broke up with my boyfriend. oh, by the way, i'm falling from the sky strapped to this guy while he is saying it. so where as counsel will say well, he said to her he is gay, that's out of context. it's don't feel uncomfortable that i'm nuzzling you and trying to speak to you in an affectionate way, which is what she testified. >> speaking of nuzzling, that sort of reminds me of horses which i live with on occasion. why isn't this cart way before the horse? we're here trying to decide what's alleged in the complaint fits within title vii. we're not at the point where we're analyzing or we're able to analyze the facts of the case unless for some reason you've made an twombly argument which i didn't say. >> no i didn't.
>> but you're sort of arguing today the facts are there and they don't support the claim. >> because those facts have already been before a jury, and a jury has already concluded under the state standard that he was not discriminated against based upon sexual orientation. and to the extent that we look at judge katzmann's decision, his concurrence in christiansen, it seems to be moving to a but for standard as to whether or not sexual orientation discrimination occurred. and if that's the case, if we take that but for standard, then you have to decide that the jury verdict under the state law, which was a but for standard, also has to apply here. again, you're being sent on a fool's errand on facts that don't reflect what came out at trial. >> the standards are different. the federal standard is a motivating factor, not the but for standard under which your client prevailed. >> i understand that.
but when i read judge katzmann's concurrence -- >> i'm not sure you're reading it as fully as one might. >> when i read -- and i hear everybody argue, part of the argument is yet you look for it, you make a but for decision. and if you're taking that but for decision, you cannot divorce that from the verdict that we already have. i see i'm out of time unless there are other question. >> thank you. >> thank you. >> thank you. >> and thank you for the honor. >> in light of the judicial consensus that existed for over 50 years that title vii's prohibition does not lead to sexual orientation discrimination, there are three reasons why congress has ratified that position. >> can i interrupt and ask a question about why you're here? just the doj ordinarily defer to
the eeoc on title vii questions? >> no, your honor. the eeoc has control over private party litigation. but doj has primary control over public litigation. and doj of course is also the nation's largest employer. >> private parties. i don't understand the distinction. >> the statute would apply equally whether it's a private party or a public party. so the government has an interest both nets regulatory capacity on the public sector side. >> who is the representative from the civil rights division on this brief? is it mr. wheeler? >> yes. he is the acting head of the civil rights division at the time the brief was filed. >> so in hively, the eeoc filed an amicus brief, but the doj did not. there some reason why wasn't filed then but one is filed now? >> i'm not sure, your honor. >> has there been any discussion than? >> i'm sorry? >> in november 2016. circumstances that might be your answer. that the reason? >> well, it's before my time with the department, your honor. so i obviously couldn't tell
you. >> notice of that. >> what is the process within the government where you've got -- i know it varies with respect to which agencies you're talking about, whether they have independent litigation authority with respect to the eeoc and the department of justice. what is the process that is entered into in terms of filing a brief? >> i'm not exactly sure what you're getting at, your honor. but i am -- >> in other words, can the eeoc file its own brief without consultation with the department of justice? it goes back to judge pooler's question. >> that's a fairly complicated question, your honor. >> try to help us. >> we can understand complicated. >> what i'll say is this. the eeoc had the authority to file the brief that they have filed in this case, and the department of justice of course has the authority to file the brief that is filed in this case on behalf of the united states. >> do you know if the employment
division of the civil rights was consulted in connection with filing this brief? >> your honor, i don't think it's appropriate to disclose the deliberative proets process with it. i will note that the act head of the civil rights division was on that brief as well as the acting head of the civil division. >> are we entitled -- >> as part of this complicated process, does doj sign off on a brief that eeoc intends to file? >> again, i don't think it's appropriate for me to speak to internal deliberations and internal processes. >> just ask if it's the procedure, not internal deliberations. >> your honor, i don't think it's appropriate for me to comment whether we signed off on the brief that they filed. >> not this brief. >> or in general. >> ordinarily, would doj sign off on a brief filed by an agency of government? >> your honor, i'm sorry -- >> doesn't the eeoc, like the s.e.c. have its own litigation authority? there are cases brought in the name of eeoc, the question of
this circuit and every place else in this country without doj approval, right? >> your honor, we're not disputing that the eeoc had the authority to file the brief that they filed here. and beyond, that i just don't think it's appropriate for me to comment on the degree to which the department was involved with that. >> i for one am prepared to proceed on the assumption that you're here. >> thank you, your honor. >> but let me ask you this, since you are here, why can't the associational analysis be performed notwithstanding a stable meaning of the word "sex" for the last 50 years as denoting men and women? in short, just on the analysis with race? >> there is a fundamental -- >> you have men and you have women. but the -- a person of a certain
race cohabiting with a person of another race is discriminated against. >> so there is a fundamental difference, your honor, between race and sex when it comes to associational discrimination. if you say that someone discriminates on the basis of interracial marriage, everyone would call that person a racist. but if you say that you discriminate on the basis of sexual orientation, you might call that person a lot of things, but the one thing you would not call them if you speak english is that they're sexist. >> you might call them a homophobe, if i understand what that word means. >> you might do that. but you would not call them a sexist. and the reason you would not call them a sexist, even though you would call the person who discriminates against interracial marriages a racist is because when you discriminate against interracial marriages, you're treating similarly situated black and white people differently, and you're doing so based on views about racial superiority. when you discriminate on the basis of sexual orientation. >> why do you need racial superiority? the same thing would apply to people of two races, even if one
of the races is not white and one of the races is not black? >> even in that circumstance, your honor, you're still treating individual -- two different minority groups differently who are otherwise similarly situated. and that's simply not true when you're dealing with a man and woman in the context of sexual relationships. and these arguments are not new. the associational argument for example was made -- kirks you point me to some cases that make this proposition, support this proposition? >> well, so i was about to say, associational argument was made in the ninth circuit in desantis in 1979, and it was rejected. and there are several other circuits that rejected in general the argument that sexual orientation was subsumed within sex discrimination. and then in 1991, congress engaged in a comprehensive amendment to the civil rights act. and it overturned several other areas where it disagreed with the judiciary, and it did not
overturn these cases. and under case like -- >> when you say disagree with the judiciary, one of my colleagues pointed out before, would that include circuit court decisions or only supreme court decisions? >> so in the '91 amendment it was supreme court decisions. but importantly, the supreme court has found ratification in circumstances where congress has rejected lower court decisions. i would point the court to laurel ard versus ponds which we cite in our brief. the supreme court did two things on the ratification front that are critical here, and both which reject expressly the arguments made by the eeoc here today. >> wouldn't it be -- wouldn't it be -- i understand your argument. but wouldn't you have a more powerful argument if sexual orientation discrimination cases were cases that in 1991 in the context of that specific act congress specifically dealt with? congress knew how to deal with specific acts. it did so in the 1991 decision
specific court decisions. but it didn't do so as a sexual orientation discrimination. why are you saying that we can make that leap to say even though they didn't talk about it, they really did? which is what you're saying. >> so i have three points about that, your honor. the first is that's exactly what the supreme court did in laurel lard versus ponds, where the question in the case was whether the ada had a jury trial right. and what the supreme court said was that the congress was trying to incorporate the fsla. and in the flsa contacts, the lower courts, not supreme court, the lower court, and only a handful of lower courts, one circuit court and couple ool' of courts. the supreme court found based on that. moreover, in response to your question -- >> that's not. >> if i could just finish. >> let you finish and then i'll ask you a question. thank you. >> right. to further their point, they
said congress in and the ada overturned other aspects of the flsa jurisprudence. and what did they point to? lower court opinions on the scope of the flsa rights. not question of the jury trial right, other contacts. and they said because congress overturned other parts of the flsa, we will assume that they ratified the parts they did in fact touch. that's also what the supreme court did in the farager decision. they said the '91 civil rights amendment, the very law at issue here, the supreme court said that when congress overturned a variety of other supreme court decisions in other areas, but didn't touch meritor, which was about the scope of supervisory liability for employers, they ratified that. so you're right, your honor. it would be strong fer the court -- if the '91 congress in the civil rights bill had specifically talked about sexual orientation, said we like all those decisions. but the supreme court has never said that's the test for
ratification. what the supreme court has said if you have a comprehensive amendment to the institute, leave standing a judicial consensus on one issue and overturn areas in another area, even when it's lower courts, that is a ratification. that said, he will also know that the '91 congress did address sexual orientation specifically because in 1991, just like in every congress going back to 1974 today, there was a bill put forward to congress to actually add sexual orientation. and the bill sponsor said that that was necessary because federal law did not cover it. and despite that, congress did not enact that bill and has never enacted that bill. and that's what fundamentally is different from the pgbc opinion that the eeoc relies on. in ppgc, the situation was that the ppgc had taken a certain position there was a bill in front of congress to ratify it. they didn't end up passing the bill. and what the supreme court said is we don't know if they didn't pass that bill because they
already agreed with the pbgc or whether they disagreed. that's totally distinguishable from a context like this where every circuit court for 50 years has said that this is not covered. every year from 1974, congress has had a bill before it to overturn that. and every time they don't do it. >> can i go back to the associational argument for a minute. i'm sympathetic to your point that miscegenation laws are a fundamental part of -- that bigotry against homosexuals is somehow about hostility to men or hostility to women as such. but what about in the case of religion? if you had an employer who was an orthodox jew who had a workforce of mixed religion people, but then one of his jewish employees married a christian, and he fired that
person. isn't -- isn't that an example of religious discrimination that doesn't have to do with the special role of miscegenation laws or some aspect of racial superiority or something like that? >> i'm not sure from that hypo whether it would be based on religious superiority. but in that circumstance you're treating similarly situated jews and christians no. the christian -- the christian can marry another christian. and the christian can marry a muslim or a jew. he doesn't care about that. he doesn't with a to see jews marrying non-jew. >> right. the jewish person is being treated differently than other similarly situated nonjewish people. >> right. that's the argument that mr. nevins has made. that is the argument. and the difference is unlike jews and nonjews, there is no factual differences, there are
real differences between men and women, and the law recognizes real differences between men and women. and this is vividly illustrated by the situation of the bathrooms, where everyone recognizes that title vii does not prohibit having single sex bathrooms. now the eeoc comes here today and says the reason why that's okay is because it's trivial. and that is frankly an astonishing proposition for the eeoc to take. because if the argument is that terms -- bathrooms are not a term and condition that matters for the discrimination statutes, then you have black bathrooms and white bathrooms. it's the same exact term and condition. they have no argument for why if it's- dawes of term and conventions, you could have racially segregated bathrooms today. that is obviously wrong. and what it demonstrates -- >> sex discrimination is sort of okay because there are real distinctions between men and women. but racial discrimination and religious discrimination are not? >> that is absolutely the case. and that is the what the supreme court --
>> sex discrimination is prohibited by title vii, i thought, the last time i looked at it. that is absolutely true. but critical difference, your honor, that discrimination requires treating people who are similarly situated differently. and unlike with race where black people and white people are similarly situated in all relevant respects under both law and fact, men and women are not similarly situated in all respects. the law recognizes that there are real physical differences between men and women. >> which has something to do with this marriage issue? >> yes, your honor. the same exact physiological differences that are relevant to bathrooms are the same exact physiological relevance that's an employer is allowed to take account of when they're regulating their employees based on their off work relationships there are several questions about this, and the eeoc agrees that employers under title vii are allowed to do that. employers under title vii are allowed to regulate their employees' off the job sexual
behavior. they're allowed to say if you cheat on your spouse, you're fired they're allowed to say if you're promiscuous, you're fired. title vii only covers race and sex and relation -- >> i'm sorry, what? >> would you agree that ethnicity is covered by title vii? >> yes, ethnicity can be used as a subof race. >> why is that? >> i just think as a matter of ordinary english, you can parse race and ethnicity. >> said as a matter of ordinary english, i look at the dictionary. and homosexuality is a subset. you can't distinguish that from sex. why isn't that the same analysis that you would apply that you just applied in the context of ethnicity, which we found, and you agree is covered by title vii, but the word "ethnicity" is not in title vii. >> i'm not disputing it as a logical matter, your honor you. could view sexual orientation as a subset of sex. but you could also as a logical
matter view it as a distinct category. and the question is under this statute which was passed by congress, which one of those two it is. and we know very well which one it is because several times congress has actually prohibited sexual orientation discrimination. it has done so saying in addition -- >> it's not in a contemporary -- you know, when laws are passed in a contemporaneous congress, then they have a different impact than when laws are passed simply from contemporaneous enactments. would you agree? >> i think that's right, your honor. in this context, it gets it exactly backwards. think about what would happen today if congress were to pass a statute that says no sex discrimination. it would be indisputable i submit that that didn't cover sexual orientation. >> it did or didn't? >> if that covered sex, if it just said sex discrimination, i think it would be indisputable that that did not cover also sexual orientation discrimination. the reason being you would have both -- until this here unbroken
set of case law staying two were distinct, and you would have several prior acts of congress that treated them as distinct. so if that's the case today, then surely in 1964 when congress passed the same exact word, they didn't have some broader notion of sex discrimination compared to what we would have today. it just makes no sense, your honor. >> on call's decision that sometimes the statute can be read to prohibit a comparable evil. >> i don't dispute the proposition, your honor. that's absolutely true, your honor, but it's not applicable here. the point was under plain english and the only questions whether does that prohibition encompass same sex harassment. and the point was by its plain text, it clearly does. and the fact that congress wasn't thinking about -- >> excuse me, excuse me. you said by the plain text it covers sexual harassment? but there were -- that's not
written in the statute. it just says discrimination because of sex. and it took quite a series of cases to construe that to include sexual harassment. or am i misremembering? >> i'm not sure exactly how long it took. it seems to me when you have a statute that says you can't discriminate on the terms and conditions of sex that fairly readily supports the proposition that it covers sexual harassment. >> barnes and coastal from the '70s that went through an extensive review of the history of the civil rights act, and that labored over this because the initial inclusion of women at all was a subject to question. so i would suggest to you that the statute has grown more in line with justice scalia's description and that judge katzmann just referred to than you're acknowledging. >> let me qualify what i said. even if you think there is a debate as to how clear it was that sexual harassment period was covered, once meri to r held
that it was covered, there is no dispute that there is any difference based on whether it's the same sex or opposite sex harassment there is nothing in the language of the statute that can get you there. and so that was justice scalia's point that congress might not have been thinking than fact pattern, but it's covered by the text. but this context, on the other hand, sex discrimination and sexual orientation discrimination have always been understood not just in terms of the subject of the content of congress, but in terms of ordinary english as confirmed by the fact that every court for 50 years held this. the eeoc held it for 50 years. and the eeoc, by the way -- >> you keep mentions the 50 years. but the landscape changes in terms of the law, right? gay marriage is different now. >> i'll do 20 years, your honor. after price waterhouse. >> why can't the same be said about sexual orientation? the landscape has changed. >> because even after price waterhouse and even after on cali, on cali is in 1996, every
court for another 20 years said that, including the eeoc. the eeoc had cases explaining that oncollie. those eeoc opinions are not any differently reasoned than the court opinions that from 1979 that we cited that we say congress ratified. these are -- there is a fairly common sense intuitive difference between sex discrimination and sexual orientation discrimination. >> i thought you just said that you could see as a logical matter that sexual orientation could be a subset of sex? >> as a logical matter there is a difference between whether you can as a theoretical matter come up with a hypothetical but for construct. circumstances it t >> is it the government's position that the plain text of the statute clearly exclude sexual orientation? >> i think it is clearly the better reading, and so yes. but i think this court doesn't need to get into whether it's ambition or not because any
ambiguity -- >> can you point me to what language in the applicable provision of title vii clearly excludes sexual orientation? >> just the ordinary definition of what discriminate on the basis of sex. it means similarly situated men and women differently. and that is not happening here any differently than it is for bathrooms. so i guess -- i will say this. it is no less ambiguous than whether title vii bans single-sex bathrooms. so i don't think anyone thinks it does, and i don't think any court ever has held it or ever will hold it, and their only argument for why it's different is an argument that would blow a massive hole in the statute by saying that terms and conditions don't cover bathrooms such that we could have colored bathrooms again, i think it is clearly the better interpretation. but even if you don't think it's unambiguous, it is certainly at least a strong enough interpretation that the fact that congress has ratified it repeatedly in various ways should count. if i can make one last point on ratification, your honor, which
is as i said before, that point to the pbgc opinion. >> i see having trouble with your term ratification. when i hear the word ratification, i understand that to mean an explicit statement. as they have done, congress has done in many, many cases. where is the explicit ratification? >> that's not the way i'm using the term ratification. it's not way the supreme court has used the term ratification in cases like inclusive communities and lorillard versus ponds. the way i'm using the term, it's the principle that i'm focusing on, when there is a judicial consensus on an issue and congress amends the statute and leaves that consensus undisturbed, that is a ratification of that position that is what the court held in lorillard, and that's what the court held in inclusive communities circumstances there a different in inclusive communities? didn't you have nine courts ruling? and in the cases that you're mentioning, with respect to the
1991 act, the congressional act, you have three courts that had acted in that area at that time. >> no. well, two points. technically i think it's four and arguably five which we cited in our brief. but more importantly, lorillard had less than that. lorillard versus ponds found ratification siting one fifth circuit opinion and one district court and two lorillard articles that cited a handful of other court opinions. so four is a hole lot more than one, your honor. but i did want to make one other point about congressional acquiescence, which is technically a different argument than ratification. ratification as we just discussed is when congress actually amends the statute and leaves it undisturbed. congressional acquiescence is the point that since 1991, year in and year out, congress has been presented with a bill to undo this consensus, and it has not acted. unlike the pbgc case, i would pointer this court to the klein decision which we cited in our
brief where again the court found based on two circuit courts and a handful of district courts that the fact that the congress hadn't disturbed that was strong evidence that that was the correct interpretation of the statute. here we have every federal circuit court, the eeoc for over 20 years in the face of price waterhouse, in the face of oncollie, and then you have congress passing statutes, using the term sexual orientation, specifically and simply, and moreover doing it by saying sex or sexual orientation, not saying as their argument would suggest sex including sexual orientation, which is what they did in the pregnancy discrimination act in 1978 when congress overturned gilbert in 1978 -- >> finish your point. >> yes. when congress overturned the gilbert in the pregnancy discrimination act of 1978, they said sex including pregnancy, which showed that they thought that pregnancy was subsumed within sex. >> thank you. thank you for your argument.
>> may it please the court, adam mortara. >> i'd like to say at the outset that the court appreciates mr. mortara accepting the court's invitation to brief the argument that he is about to make. >> thank you, your honor. the but for test, however it is applied, does not categorically define sex discrimination. and we've had ample discussion of why that's true today, particularly with regard to sex segregated bathrooms, but also the bower case from the fourth circuit with the fbi literally having different numerical standards for different numbers of push-ups for a man and for whom it was mr. bower's life dream to become a special agent of the fbi, missed the push-up count by few and if he had been a woman would have been made a special agent, was not disputed and yet that was not sexual discrimination.
the but for test as applied by i guess the appellates here, but also maybe sometimes by the way the government would put it gives you false positives. so it cannot and does not define what is sex discrimination. and i don't really have police chief of a strong position about how the but for test should be applied here, largely because it's not an interpretive device. it's not a device for interpreting title vii. it is an evidentiary standard. it can provide clues as to whether the real reason was sex discrimination, but it doesn't provide the answer. and a few other examples, we talked about trivial in terms of conditions. i agree with my friend from the justice department, bathrooms are not trivial. osha requires sex segregated bathrooms, actually requires in a multitoilet situation that bathrooms be sex segregated. >> told us it's not but for, it doesn't apply here. would you have a term to use instead that would be more accurate and more helpful? >> i think i'd start at the top, which is the true reason has to be discriminatory.
the true reason has to be because you are a man. so that's the top. and i think to fulfill, to sort of fill that out and get othat answer, i'd say the but for test is helpful. and i'd say there has to be an unequal burden applied from one stokes the other. that's what the ninth circuit does in their dress code line of cases which starts out with updated and continental airlines having different weight requirements for flight attendants, or one had a requirement that flight attendants be unmarried. and those were determined to impose an unequal burden on the sexes. but that ends up in jesperson where women have to wear makeup and men are not allowed to wear makeup. and women can color their nails and men cannot. the but for test fail there's, it was not an unequal burden and same with the fbi and the bower case. >> you say, as i understand it, that a true full responsible why an employer fired a gay man would be because he was gay, not
because he was a man. but isn't that arguably an incomplete answer? and saying someone is gay is shorthand for saying that the person is attracted to other men. so that is the real reason if you pursue it more. so in the price waterhouse case, for example, if price waterhouse had argued that they discriminated against anne hopkins, not because she refused to wear makeup, but because she was a gender nonconforming person. would that have been a defense? >> no. and the reason -- it strongly depends on the facts of price waterhouse and the catch-22 that was alluded to earlier.
you see, the problem in price waterhouse is the catch-22. she was aggressive, but then you had to be aggressive to get the promotion. the price waterhouse would have fired a docile or passive man, presumably under the catch-22 in the facts that were given. but, no, it is not true. merely being nonconforming to gender by itself gives you a sex discrimination claim. it has to also be true that there is something additional. evidence of misogyny, evidence of highly traditional sexist views about women and children. that's kind of the back case from this court there has to be something more. it is not true that sex stereotyping standing alone can give rise to a sex discrimination charge or ms. jesp jesperson would have still had their job at harrah's. the issue of wearing makeup was so important to her, she quit her job that she had had for a very long time because of it. i really do not understand the talking about dress codes and talking about bathrooms as if
they're nothing to people. they are -- they can be extremely important as they were to ms. jesperson. >> why it is that you seem to posit that title vii was directed at animus as opposed to something else? there are these adverse impact cases that are under title vii that have nothing to do with animus. >> and that's different provision of the statute. and your honor, if you've interpreted me to say title vii is only about animus, then i should clarify. it's not only about animus. the disparate treatment section title vii is not only about animus, but it is about what motived the decision. and animus is the smoking gun evidence that the subject category motived the decision. >> you're asking us, i thought, but maybe i misunderstood to view animus as some helpful interpretive tool. >> it's not -- i think animus is not just a helpful interpretive tool. animus is the recips like tur of
the whole thing. if you find end of story, disparate treatment. du it does call interfaith marriages and interracial marriages i would like to briefly address. on the interfaith hypothetical, it was positive about the jewish employer marrying out of the faith that absolutely would be discrimination on the basis of religion, almost without question as the hypothetical was stated because the jewish employer, the employer, he doesn't need to be jewish, would have an idea, a notion of how jewish persons were supposed to behave, and he would have imposed that notion on the jewish employee. and the truthful answer in the price waterhouse question would have been i fired you because you are a jew and jews are not supposed to do that. >> what's the difference -- >> i don't see why you couldn't say exactly the same words you just said, substituting man for jew. >> the words could be used, but there actually is no word for somebody who is, for instance, just opposed to interracial
relationships, and the word that we used to say somebody is opposed to gay relationships is -- >> would you say there is no word for someone who is opposed to an interracial relationship. >> you just made exactly my point. >> that's a racist. >> you just made exactly my point. on the interracial discrimination cases, all that is a statement that there is no studied neutral opposition to interracial relationships. it does not exist. it's res ipss like cuter. there is no room. where somebody who says i oppose intersex or homosexual relationships rather, there is a name for that person. it can be. >> are you really positing that it is implausible that the members of every race would view with -- may view with dismay or disgust someone like themselves marrying someone who is not? >> i'm not positing that that's
impossible. i'm pose sitting it's racist. >> you're assuming that it is only white people based on an idea of white supremacy who would object to someone, a white person marrying someone of another race. and i think it just as plausible, i don't know why it wouldn't be, that a member of another race would view the same marriage or liaison with dismay. >> that's exactly right. what i mean by there is no studied neutral opposition to interracial relationships is there is one that is not race-neutral. in other words, you're positing a situation where, say, an asian person objects to a -- a chinese person objects to a chinese person marrying out a non-chinese person that would be exactly the same as the jewish christian marriage hypothetical. it would be a chinese person with an idea about how chinese people should behave firing somebody because they are chinese. >> judge lynch's question. >> you're saying that the animus is not against whatever sex it is that the person is marrying.
the animus in the bias against gays case is specifically against gays. it doesn't have anything to do with hostility to men. >> that's correct. >> someone who is being bigoted against a man who marrying another man has nothing against men. someone who is opposed to someone of his race marrying someone of another race does have something against the other race. that the point? putting aside studied neutrality? >> that's very close to what i'm saying. i don't like the associational line of cases for a lot of reasons. and i think it's much more about racial stereotyping of the race of the employee. so the instance of a white marrying a black person, it's about how whites should behave. i would take issue with that a little bit. and i would say -- i would qualify what you say only in the following sense. it is perhaps more possible that a gay man could be fired because there were an issue with gay men
as opposed to gay women. and the justice department and i both concede that would be sex discrimination. and that's where juries are going to have to get into the evidence, and juries are going to have to look at why the person was fired. so i would qualify it in that way. >> how do we sidestep the associational piece which you do not -- you're not comfortable with? because it seems to me we have that lurking out there, and it can be used as a guide post. >> i would say it -- i'll give you a couple of ways to sidestep it. number one, a lot of the instances of the failures of the but for test could be classed as associational discrimination as well. i prefer to go to the bathroom with other men, for example. and therefore i associate with other men in the toilet. and so if you discriminate against me or discriminate against me because i prefer to associate with other men, for instance, in the locker room, which is quite similar to the bathrooms, and we had discussions in the last year and a half about locker room talk too. maybe it's not all great, and much of it is not.
but at the same time there is an associational element there as well. but also beyond that, what i would say is associational discrimination doesn't get you much more than the but for test. and when the but for test is known to have false positives in session, it's really not adding much for us. on race, the but for test is as perfect as a test could possibly be. there are differences between race and text. we need to look no further again. i bring back to the bathrooms. after the '64 act was passed, everyone understood. >> distinguish this case from the issue of sex segregated bathrooms. and talking about arguments the court did and didn't have.
it didn't appear that the hively courtney way had in their minds this issue of the but for test and sex segregated bathrooms. it doesn't appear to have been discussed. whereas -- >> let me just interrupt for one second. i have not thought this all the way through. but title vii really focuses on economic opportunities, segregated bathrooms has very little too to do with economic opportunity. but employment discrimination, firing employee, making other adverse moves does in every respect. mr. zarda here lost his job because of the actions taken against him. so could you explain why that might not be an active useful distinction? >> to be clear, if you go to the osha regulations on bathrooms, they think bathrooms are very important. they have regulation about the numbers and this kind of thing. the hypothetical is a man wants to use a woman toilet for whatever reason.
that was the issue in castle. a biological male who was a transgendered woman who wanted to use the women's toilet. and it was very important to them. and presumably important to their economic stunt just like ms. jesperson and her desire not to wear makeup. at the same time that is not sex discrimination. >> why is using the bathroom related to economic opportunity? >> it has a lot to do whether you can perform your work functions during the day. >> i don't understand how bathrooms are that critical as a matter of title vii. they may be critical as some regulation of law, but not as a matter of title vii. >> number one, that would be news to all the people who woke up that racially segregated toilets could not be used after the civil rights act that we're talking about today under this exact provision that we're talking about today. will be there are absolutes. ms. castle was fired because she
wanted to use the women's toilet. she was fired. so sex segregated bathrooms exist and it's a rule employees have to follow just like dress codes. and to round out the associational discrimination point, just one more, i own a tennis club, say, and have i tennis pros. and i say to my tennis pros, you only enter mixed doubles tennis tournaments. one of them comes to me, i would like to enter a regular doubles tournament. and the answer is no. the but for test is satisfied. now i tell you it's a man and he wants to play tennis with other men, but i tell him he can't. but if he was a woman, he could play tennis with other men. the but for test is satisfied. it's an associational discrimination case. i'm discriminating against him on the basis of who he wants to play tennis with. what i'm going to hear back is well, that's trivial there is no hierarchy of titles in title vii. the text doesn't support it. thank you. >> thank you.
>> mr. antollino, you'll have three minutes in rebuttal. >> thank you, your honor. i would agree with my friend from chicago that there is no hierarchy in title vii. all five of the detected categories are treated the same. and you see that in footnote 9 of price waterhouse. there is no difference, and i had hoped we would get through this argument without an extended discussion on bathrooms. but i knew it would happen. >> my question to you at the beginning was about this bathroom example. and you just heard your adversaries use that in a somewhat effective way to say we wouldn't consider that.
is really to focus on a matter that doesn't matter to economic opportunities, which is what he gives which is what title vii is about. with respect to the charge, i contend that when we came in to this case, we wanted to bring this theory to the district court. and we wrote the charge as best we could to preserve both our
state claim and our federal claim. and we believe did it well, as best we could, as poorly written as it was. but when baldwin came down, within weeks, we asked to reopen the question, and our request was denied. i would also suggest that the eeoc -- oh, i also -- with respect to the legislative intent, i don't think that there has been an answer to the pension benefit, the ltv corp. decision, which holds that subsequent legislative history is a hazardous basis for inferring intent. and in that case, it cited an earl warren opinion from 1962 so we have not 50 years of cases that hold against us, but we
have an unbroken line of 80 years of cases that hold that negative legislative history is not a basis to make a decision. the but for question will be something that necessarily is going to depend on the context and the facts. we cannot guarantee that it will work in every context. but case held that we see no basis in the statute to be undually formal and say that it doesn't apply. that male on male harassment
doesn't apply and sexual harassment, as your honor has pointed out was not an established theory until 1979 and for years, courts have held that well, this is just sexual attraction between men and women and this is not what title 7 was intended to protect. eventually courts began to get right and there's no question n now. the court has to interpret the statute. your honor, you know how -- you know the book on it, i got the title wrong in my brief but i did read it. >> at least you read it. >> and one thing that you pointed out is that agencies are generally the first, offen the primary interpreters of statutes
and thus that gives weight to the eeoc's interpretation where the doj in this case does not govern exclusively employment discrimination. and i believe that's all i have to say unless there are any further questions. >> thank you. >> thank you. . >> thank you all for your preparation and good arguments. the court will reserve decision. the clerk will adjourn court. >> the supreme court heard a cases dealing with legislative districts after a lower court said the states constituted jerry mandering. you can hear the argument on c-span.